Gary James Cox v. State

495 S.W.3d 898, 2016 Tex. App. LEXIS 8675
Court of Appeals of Texas·Decided August 11, 2016·No. NO. 01-15-00220-CR, NO. 01-15-00221-CR, NO. 01-15-00222-CR·Published·Cited by 17 cases

Opinions

OPINION

Laura Carter Higley, Justice

Appellant, Gary James Cox, was charged by indictment with aggravated sexual assault of a child,1 failure to comply with registration requirements for a sex offender,2 and attempted solicitation of sexual performance of a child.3 Appellant pleaded not guilty. The jury found him guilty of all three charges. The trial court found the enhancements true and sentenced Appellant to life imprisonment, ten years’ confinement, and ten years’ confinement, respectively, with the sentences to be served concurrently. In one issue on appeal, Appellant argues that the trial court abused its discretion by admitting 2,000 images and videos of child pornography possessed by Appellant.

We affirm for all three causes.

Background

Tom and Debbie B. were friends with Appellant when he became homeless. Taking pity on him, they would occasionally pick him up and feed him or put him in a hotel. During a family vacation in the summer of 2013, Tom and Debbie invited Appellant to housesit for them in League City, Texas. By that August, their son had reached the age of majority and moved out of their house. Tom and Debbie invited Appellant to move into their son’s old room, and Appellant accepted. He lived with them from August 2013 to December 2013.

During this time, Tom and Debbie’s daughters still lived at the house. Their older daughter, V.B., was 13 during the time of Appellant’s stay. Their younger daughter, L.B., was three. On occasion, Appellant would be at the home with the daughters while the parents were not home. This included an occasion when Tom and Debbie were away for two days.

In December, Tom and Debbie discovered V.B. had a cell phone, which they had not given to her. On it, they found messages between Appellant and V.B. Some of Appellant’s text messages to V.B. were sexually suggestive. In one exchange, Appellant asked V.B. to send him nude pictures of herself. Tom and Debbie kicked Appellant out of their house and notified the League City Police Department. When the daughters were taken to the Children Advocacy Center, L.B. made an outcry against Appellant.

At trial, V.B. testified that Appellant had given her the phone that her parents found. She testified that, before one exchange of messages between them, Appellant had shown her a picture of himself nude. The picture was on his phone, and he had shown it to her at a time when they were the only two people in the house. Some time after that, they exchanged the following messages:

[901]*901[Appellant:] Do you want to hear something funny?
[V.B.:] Ok
[Appellant:] Remember those pies of me...... The special ones?
[V.B.:] Huh
[Appellant:] The ones of me, nude.
[V.B.:] Ya
[Appellant:] Well, to make it fair, where’s the pics of you? Lol4
[Appellant:] Gotcha
[Appellant:] ©
[V.B.:] Uhh. I’m ok
[Appellant:] Lol, but now I’m supposed to see your pics.., .lol ,
[Appellant:] I’m just teasing with you
[V.B.:] I know... Phones about to die
[Appellant:] Then you better take the pics fast_hahaha

V.B. did not send Appellant images of herself. This exchange formed the basis of the State’s charge against Appellant of attempted solicitation of sexual performance of a child.

Appellant’s defense to this charge during trial was that Appellant was only joking and, accordingly, never intended for Y.B, to send him nude pictures. During his opening statements to the jury, Appellant’s counsel argued,

I think the evidence will show totally inappropriate text messages from my client to [V.B.]. I believe the evidence will show that. But the evidence will not show that Gary Cox had. the intent of actually trying to get [V.B.] to send him a nude picture. Rather, I think the evi- - dence will show totally inappropriate humor or inappropriate attempt at humor ..from my client to [V.B.], but nothing more.

During his cross-examination of V.B., Appellant’s counsel emphasized that Appellant repeatedly used “LOL”. during the exchange and that he specifically said he was “just teasing” her.

To develop the charge of- aggravated sexual assault of a child, the State presented the testimony of L.B.5 She was three years old at the time of the offense, but was five years old at the time of trial. When presented with a diagram of the human body, she referred to the vagina as the “bottom” and the penis as the “front.” She testified that Appellant had touched her on her “bottom” with his “front.” Appellant did not have on any pants or underwear, and he took down her pants and underwear. He was moving and.something came out of his “front.”

Appellant’s defense to this charge was that L.B. was confused and that his alleged actions never happened. During voir, dire, Appellant’s counsel discussed with the jury about how little children act dif[902]*902ferently when something bad happens to them. -He asked the jury about different ways children would act when something bad happened to them and elicited answers about children acting withdrawn, staying in their room, or eating less. During his opening statement, Appellant’s counsel asserted that no physical evidence supported L.B.’s accusation, that the evidence would show that her behavior never changed', and that she never demonstrated any unusual behavior around Appellant. During his cross-examination of L.B., Appellant’s counsel asked her if " she knew what pretending was and if her story about Appellant was pretend. She testified that she understood pretending and that her story about Appellant was not pretend.

Near the end of the guilt-innocence phase of trial, the trial court held a hearing outside the presence of the jury on the admissibility of the State’s exhibit of approximately 2,000 child pornography images and videos found on Appellant’s computers and storage device. The State asserted the evidence was necessary, among other reasons, to show intent and motive and to rebut Appellant’s claim that he was only joking with V.B. and -did not intend for her to send him a nude picture of himself. Appellant argued that the prejudicial effect of the evidence outweighed its probative value. At the close of the hearing, the trial court stated,

I have looked at the case law that’s been provided by the State. I have heard the voir dire, the opéning statement by the Defense. I’ve heard the tenor of the cross-examination. And I believe that the evidence is probative of the ultimate issues in this case. I think they go toward issues that the jury’s going to need to decide_
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In light of [Appellantj’s .denial of being serious about suggesting that [V.B.] provide -him with pictures that would be of a .pornographic nature, I think that the evidence is relevant, I think it is not unfairly prejudicial.
In balancing the interest of Mr.

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Gary James Cox v. State, 495 S.W.3d 898, 2016 Tex. App. LEXIS 8675 (Tex. Ct. App. 2016).

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